New Formal Ethics Opinion(s) from the Board of Professional Responsibility

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Howard H. Vogel
Knoxville, Tennessee
Editor-in-Chief, TBALink

LESLIE M. BUCHHOLZ v. TENNESSEE FARMERS LIFE REASSURANCE COMPANY
Court:TCA
Attorneys:
Robert B. Littleton, David L. Johnson, Nashville, For Tennessee
Farmers Life Reassurance Company
Danny R. Ellis, Jackson, For Appellee, Leslie Buchholz
Judge: CRAWFORD
First Paragraph:
Beneficiary of life insurance policy sued insurer to collect proceeds
of policy. Insurer defended on the ground that the policy had lapsed
for nonpayment of premium before the expiration of the thirty-one day
grace period provided in the policy. The beneficiary contends that the
grace period had not expired prior to the death of the insured,
because the premium payment date in the policy was changed by the
insurer's accepting premiums from an automatic bank withdrawal on the
latter date. Alternatively, beneficiary contends that acceptance by
the insurer of the premiums on the latter date was a representation to
the insured and relied upon by him to his detriment that the premium
was due on the latter date and the grace period began on that date.
The trial court denied the insurer's motion for a summary judgment and
granted the insured's motion for a summary judgment. Insurer appeals.
We vacate and grant summary judgment to insurer.
http://www.tba.org/tba_files/TCA/buchh.wpd

DALE SUPPLY COMPANY v. YORK INTERNATIONAL CORP., ET AL.
Court:TCA
Attorneys:
Ronald George Harris, Nashville, Tennessee, for the appellant, York
International Corp. John Anthony Wolf, Baltimore, Maryland, for the
appellant, York International Corp.
Joel Randall Hooper, Brentwood, Tennessee, for the appellee, Dale
Supply Company.
Judge: HELDMAN
First Paragraph:
The sole determinative issue on appeal is whether an agreement which
mandates arbitration in the event of claims or disputes "arising out
of or relating in any way to the relationship of the parties or this
Agreement, or the breach thereof," requires arbitration of tort claims
including acts arising after the parties' contractual relationship
ended. We hold that arbitration of claims of tortious interference
with contracts or business relations is required under the terms of
the parties' agreement and reverse the judgment of the trial court.
http://www.tba.org/tba_files/TCA/dale.wpd

ETHEL HICKS, ET AL., DERIVATIVELY ON BEHALF OF UNION PACIFIC
CORPORATION v. DREW LEWIS, ET AL.
Court:TCA
Attorneys:
Mary L. Wolff and Katherine L. Frazier, Memphis, Tennessee; William S.
Lerach,, Travis E. Downs, III, James R. Hail, and Mary K. Blasy, San
Diego, California; George E. Barrett, Douglas S. Johnston, Timothy L.
Miles, and James G. Stranch, III, Nashville, Tennessee, for the
appellants, Ethel Hicks, et al.
Leo Bearman, Jr., Memphis, Tennessee, for the appellees, Drew Lewis,
Richard K. Davidson, Philip F. Anschutz, E. Virgil Conway, Thomas J.
Donohue, Archie W. Dunham, Spencer F. Eccles, Ivor J. Evans, Elbridge
T. Gerry, Jr., Judith Richards Hope, Richard J. Mahoney, James
Robinson, III, Steven R. Rogel, Richard D. Simmons, and Ernesto
Zedillo Ponce de Leon.
Robin Rasmussen, Cordova, Tennessee, for the appellees, Leo H. Suggs,
James D. Douglas, Robert Cecil, Mike Eastman, Joe Jasmer, Richard
Pair, Jeff Seegert, Donald Tuggle, and Dwayne Williams.
Clifford Pierce, Jr., Memphis, Tennessee, for the nominal appellees,
Union Pacific Corporation and Overnite Transportation Company.
Judge: KIRBY
First Paragraph:
This is a shareholders derivative action. The plaintiff shareholders
sued the defendant Utah corporation and its board of directors and
officers, claiming that the defendants' unlawful labor violations
caused financial damage to the corporation of approximately $1 billion
dollars. The defendants moved to dismiss because the plaintiffs
failed to make a pre-suit demand on the corporation to take corrective
action, as is required under Utah law. The plaintiffs asserted that
the law of Tennessee applied, and that under Tennessee law, a pre-suit
demand is not required when making such a demand would be futile. The
trial court granted the defendants' motion to dismiss, applying the
law of Utah. The plaintiffs now appeal. We affirm, finding that the
law of the state of incorporation applies to issues related to the
pre-suit demand requirement and that, under the law of Utah, the
plaintiffs' failure to make a pre-suit demand on the corporation
mandates dismissal of the lawsuit.
http://www.tba.org/tba_files/TCA/hickse.wpd

MARC J. KAYEM, M.D. v. WILLIAM ROBERT STEWART, JR., M.D.
Court:TCA
Attorneys:
Scott C. Williams and Stephanie S. Maxwell, Columbia, Tennessee, for
the appellant, Marc J. Kayem, M.D.
Thomas W. Hardin and Patrick M. Carter, Columbia, Tennessee, for the
appellee, William Robert Stewart, M.D.
Judge: FARMER
First Paragraph:
Plaintiff filed suit to recover sums allegedly due under a contract of
employment. The trial court awarded partial summary judgment to
defendant, finding plaintiff was not entitled to certain percentages
of accounts receivable. The trial court further found plaintiff had
breached the contract and a covenant not to compete, and awarded
defendant a judgment of $12,500. The trial court also awarded
defendant's attorney's fees. We affirm in part, reverse in part, and
remand.
http://www.tba.org/tba_files/TCA/kayemmarcj.wpd

GREGORY MORRIS v. SHELBY COUNTY GOVERNMENT
Court:TCA
Attorneys:
A. Wilson Wages, Millington, Tennessee, for the appellant, Gregory L.
Morris.
Carroll C. Johnson, Memphis, Tennessee, for the appellant, Shelby
County Government.
Judge: KIRBY
First Paragraph:
This is a claim for on-the-job injury benefits. The plaintiff was a
jailer in the defendant county sheriff department. While at work, the
plaintiff fell down an escalator onto his knees. He did not receive
medical treatment at that time. Over seven months later, the
plaintiff began working a shift at the jail that required him to stand
during the entire shift, causing pain and swelling in his knees.
Consequently, the plaintiff underwent surgery on both of his knees.
The plaintiff filed a lawsuit seeking on-the-job injury benefits for
the time he was off work recovering from the surgeries. The trial
court held that he was not entitled to the benefits, finding that the
expert medical testimony did not establish that the condition for
which the plaintiff underwent surgery arose out of his employment.
The plaintiff now appeals. We affirm, concluding that the evidence
does not preponderate against the trial court's finding that the
plaintiff had not proved causation.
http://www.tba.org/tba_files/TCA/morrisg.wpd

TOWN OF OAKLAND v. TOWN OF SOMERVILLE, ET AL.
Court:TCA
Attorneys:
Richard J. Myers, Memphis, Tennessee, for the appellant, Town of
Oakland.
J. Kevin Walsh and James R. Newsom, III, Memphis, Tennessee, for the
appellees, Town of Somerville, et al.
Judge: KIRBY
First Paragraph:
This is an annexation case. The plaintiff municipality passed an
ordinance annexing adjoining property. The annexation was to be
effective ninety days later. The property to be annexed was also near
the defendant municipality, which had a greater population than the
plaintiff municipality. After the plaintiff municipality passed the
annexation ordinance, prior to its effective date, the defendant
passed an ordinance to annex the same property. Almost two years
later, the plaintiff filed this lawsuit, seeking a declaratory
judgment that the defendant's annexation ordinance was invalid,
because it attempted to annex property that the plaintiff had already
annexed. The trial court granted the defendants' motion to dismiss,
determining that the plaintiff had had ninety days in which to
challenge the ordinance in a quo warranto action pursuant to Tennessee
Code Annotated S 6-51-103, and its failure to do so within that time
limit was fatal to its claim. The plaintiff now appeals. We reverse,
finding that the remedy of declaratory judgment was available to
challenge the validity of an annexation ordinance, and that the
ninety-day requirement for a quo warranto action does not apply to
such a declaratory judgment lawsuit.
http://www.tba.org/tba_files/TCA/oakland.wpd

IN THE MATTER OF THE ESTATE OF JOAN FORSHEA PEARSON, DECEASED
Court:TCA
Attorneys:
William G. Hatton, Bolivar, Tennessee, for the appellant Bonnie White,
Executrix for the estate of Joan Forshea Pearson.
H. Morris Denton, Bolivar, Tennessee, for the appellee Bonnie Rudd.
Judge: KIRBY
First Paragraph:
This case involves a claim against a decedent's estate. The claimant
asserted that the decedent loaned her a significant sum of money. The
executrix of the estate excepted to the claim. Despite considerable
evidence of suspicious surrounding circumstances, the trial court
claim was allowed. Since we are unable to determine the basis for the
trial court's ruling, we remand for clarification of the record.
http://www.tba.org/tba_files/TCA/pearson.wpd

GEORGE CAMPBELL, JR. v. BRUCE WESTBROOKS, WARDEN
Court:TCCA
Attorneys:
George Campbell, Jr., Henning, Tennessee, pro se.
Paul G. Summers, Attorney General and Reporter; Braden H. Boucek,
Assistant Attorney General; and William L. Gibbons, District Attorney
General, for the appellee, State of Tennessee.
Judge: OGLE
First Paragraph:
The petitioner, George Campbell, Jr., was convicted by a jury of
felony murder and aggravated assault. He was sentenced to life
imprisonment for the felony murder conviction and ten years
confinement for the aggravated assault conviction. Subsequently, the
petitioner filed a pro se petition for writ of habeas corpus, alleging
that his convictions were void because the trial court was without
jurisdiction to render judgment. The trial court summarily dismissed
the petition and the petitioner appealed to this court. Upon review
of the record and the parties' briefs, we affirm the trial court's
dismissal of the petition for writ of habeas corpus.
http://www.tba.org/tba_files/TCCA/campb.wpd

STATE OF TENNESSEE v. RICHARD COLE, III
Court:TCCA
Attorneys:
Jeff Mueller, Jackson, Tennessee, for the Appellant, Richard Cole,
III.
Paul G. Summers, Attorney General & Reporter; John H. Bledsoe,
Assistant Attorney General; and Garry G. Brown, District Attorney
General, for the Appellee, State of Tennessee.
Judge: WITT
First Paragraph:
Richard Cole, III appeals from the Crockett County Circuit Court's
imposition of an effective 50-year sentence for his convictions of
especially aggravated kidnapping and two counts of aggravated rape.
The individual sentence for each of the three Class A felonies was set
at 25 years, and the aggravated rape sentences were imposed
concurrently with each other and consecutively to the especially
aggravated kidnapping sentence. The defendant complains on appeal
that the individual sentences are too lengthy and that there is no
basis for consecutive sentencing. Upon review, we modify the
defendant's individual sentences to 21 years for the two aggravated
rape convictions and 21 years for the especially aggravated kidnapping
conviction. We find partial consecutive sentencing appropriate and
impose an effective sentence of 42 years.
http://www.tba.org/tba_files/TCCA/coler.wpd

STATE OF TENNESSEE v. TERRY LYNN ROBERTS
Court:TCCA
Attorneys:
Guy T. Wilkinson, District Public Defender, and Billy R. Roe, Jr.,
Assistant District Public Defender, for the appellant, Terry Lynn
Roberts.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; G. Robert Radford, District Attorney
General; and Eleanor Cahill, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: TIPTON
First Paragraph:
The defendant, Terry Lynn Roberts, was convicted by a Carroll County
Circuit Court jury of rape of a child, a Class A felony; aggravated
sexual battery, a Class B felony; and rape, a Class B felony. The
trial court sentenced him to consecutive sentences of twenty-five
years for the rape of a child conviction, eleven years for the
aggravated sexual battery conviction, and twelve years for the rape
conviction. The defendant appeals, claiming that the evidence is
insufficient to support his convictions. We affirm the judgments of
the trial court.
http://www.tba.org/tba_files/TCCA/roberts.wpd

STATE OF TENNESSEE v. FRED TAYLOR SMITH
Court:TCCA
Attorneys:
J. Barney Witherington, IV, for the appellant, Fred Taylor Smith.
Paul G. Summers, Attorney General & Reporter; Kathy D. Aslinger,
Assistant Attorney General; and Elizabeth T. Rice, District Attorney
General, for the appellee, State of Tennessee.
Judge: WADE
First Paragraph:
The defendant, Fred Taylor Smith, entered pleas of guilt to driving
under the influence and driving under the influence per se. See Tenn.
Code Ann. S 55-10-401(a)(1)-(2). The trial court merged the two
convictions and imposed a sentence of 11 months and 29 days with a
requirement of service of 75%. As a part of the plea agreement, the
defendant reserved a certified question of law challenging the
validity of the investigatory stop. The judgment is affirmed.
http://www.tba.org/tba_files/TCCA/smithf.wpd

STATE OF TENNESSEE v. BRIAN L. WOODS
Court:TCCA
Attorneys:
Clifford K. McGown, Jr., Waverly, Tennessee, for the Appellant, Brian
L. Woods.
Paul G. Summers, Attorney General and Reporter; Michael Moore,
Solicitor General; Brent C. Cherry, Assistant Attorney General; C.
Phillip Bivens, District Attorney General, for the Appellee, State of
Tennessee.
Judge: HAYES
First Paragraph:
The Appellant, Brian L. Woods, was convicted by a Dyer County jury of
second degree murder and received a twenty-four-year sentence to be
served in the Department of Correction. In this appeal as of right,
Woods raises the following issues for our review: (1) whether the
trial court erred by permitting a witness to testify in violation of
the rule of sequestration; (2) whether the evidence is sufficient to
support his conviction; and (3) whether his sentence of twenty-four
years is excessive. After a review of the issues presented, we
conclude that Woods' challenges are without merit. The judgment of
conviction and sentence are affirmed.
http://www.tba.org/tba_files/TCCA/woodsb.wpd

STATE OF TENNESSEE v. JAMES ADMERAL YANDAL
Court:TCCA
Attorneys:
Clifford K. McGown, Jr., Waverly, Tennessee (on appeal); Joseph P.
Atnip, District Public Defender, and William K. Randolph, Assistant
Public Defender (at trial and on appeal), for the appellant, James
Admeral Yandal.
Paul G. Summers, Attorney General and Reporter; P. Robin Dixon, Jr.,
Assistant Attorney General; Thomas A. Thomas, District Attorney
General; and Kevin D. Alpin, Assistant District Attorney General, for
the appellee, State of Tennessee.
Judge: WILLIAMS
First Paragraph:
The defendant appeals his conviction and sentence for selling a
Schedule VI drug over one-half ounce, a violation of Tennessee Code
Annotated section 39-17-417(a)(3), a Class E felony. The defendant
alleges that the delay between the offense date and his conviction was
a due process violation and that his four-year sentence as a Range II
offender was excessive. We conclude that neither issue is meritorious
and affirm the judgment from the trial court.
http://www.tba.org/tba_files/TCCA/yandal.wpd

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